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FIRM 3G - Criminal Litigation-Powerpoint
FIRM 3G - Criminal Litigation-Powerpoint
FIRM 3G - Criminal Litigation-Powerpoint
PROCESS
CRIMINAL LITIGATION
PRESENTATION
ATP,
FIRM 3G
2016
INTRODUCTION
Definition of extradition
Initiating Proceedings
Issue of Warrants
BACKING OF WARRANTS
Backing of a warrant in extradition is a
common law concept where authorities of
the jurisdiction where the person is
wanted issue their normal warrant of
arrest, which is sent directly to the
authorities of the jurisdiction where he is,
the authorities endorse it if it appears to
be in order and give it to their policemen
to execute it as if it were their own.
Section 12 of the Extradition (Contiguous
and Foreign Countries Act) provides for
backing of warrants issued in another
country. The Act authorizes a magistrate
to back a warrant from an extradition
SEARCH WARRANTS
Section 20 of the Act provides for search warrants as may be issued by
the magistrate. Where a warrant for the arrest of a person accused of
an offence has been endorsed in pursuance of Part III, the magistrate
shall have the same power of issuing a warrant to search for any
property alleged to be stolen or otherwise unlawfully taken or obtained
by such person, or otherwise to be the subject of such offence.
The above provision is to the effect that a magistrate may issue a
search warrant if that there are reasonable grounds for suspecting that
there is, in any place, a thing which is of material evidence for the
offence or proceeds of the offence in respect of which a warrant has
been endorsed or a provisional warrant issued.
In Prince Buruji Kashamu Judgment Creditor/Applicant
Inspector-General Of Police Chairman Nig. Drug Law
EnforcementAgency (Ndlea)
The court emphasized on the need to have a provisional warrant
clearly signed with the name of the judge and the court making it. The
court also held that endorsement of a warrant should fulfill the same
requirements.
The minister may also order the warrant of arrest to be cancelled and
the fugitive criminal released.
SURRENDER OF FUGITIVES
At the time of committal of the fugitive, the magistrate shall inform him that:(i) He shall not be surrendered until after the expiry of fifteen days
(ii)He has a right to apply for the issue of directions in the nature of habeas
corpus.
Article 165 of the constitution establishes the High Court with among other
powers the jurisdiction to determine the question whether a right or
fundamental freedom in the bill of rights has been denied, violated, infringed
or threatened.
The High Court further has supervisory jurisdiction over the subordinate
courts and any person or authority exercising judicial or quasi-judicial
functions and may call for records of any proceedings before those bodies and
may make an order or give direction it considers appropriate to ensure fair
administration of justice.
By these provisions, it would therefore appear that the High Court is given
exclusive jurisdiction over an order of Habeas Corpus since it falls within the
fundamental rights and freedoms guaranteed by the constitution at liberty.
However, this may not be so if sufficient cause can be shown for the delay.
outside the framework of the community of nations, and that on this account, its regime
of law and Constitutional order inter-face with the other states under the auspices of
international law. One of the beacons of international law is multilateral treaties, to
which Kenya and other states are parties. The Rome Statute is one such treaty.
It establishes the International Criminal Court [ICC], which prosecutes and judge, in the
event of the commission of certain named categories of offences referred to in Article 5
which are: crimes of genocide, crimes against humanity and war crimes. In relation to
such crimes, state parties, such as Kenya, have agreed to cede some of their jurisdiction
of crime. Kenyas International Crimes Act, 2008 provides in its preamble as follows;
All the law in force immediately before the effective date [27th August, 2010]
continues in force and Article 2 (5) and (6) of the same Constitution now strongly
supports the application of international law in Kenya and provides it forming part of the
laws of Kenya.
They should be construed with the alterations, adoptions, qualifications and exceptions
necessary to bring it into conformity with the Constitution
International Crimes Act entered into force on 1st January, 2009. Indeed the Constitution
of Kenya, 2010, which was promulgated on 27th August, 2010 carries a transitional
clause [sixth schedule, clause 7(1)]
EXTRADITION TO KENYA
Criminals Surrendered to Kenya
Subject to subsection (2) of Cap.76 , where in pursuance of
an agreement with another country any person accused or
convicted of any crime described in the Schedule is
surrendered by that country, that person shall not, until he
has been restored or had an opportunity of returning to that
country, be triable or tried for any offence committed before
his surrender to Kenya other than such of the crimes as may
be proved by the facts on which the surrender is grounded.
Nothing in this section however applies in relation to a person
surrendered or returned to Kenya by a country to which Part
III of The Act applies that has specific written agreements
between particular states an Kenya on how to conduct
extradition between each and Kenya .
CASE EXAMPLES
Extradition to Kenya : From a Foreign and Contiguous Country:
Extradition from the USA
For example in extraditing to the USA, the extradition treaty
that is currently in existence between Kenya and The USA is
similar to the rest of the extradition Treaties in The Extradition
(Contiguous and Foreign Countries) Act Chapter 76, in that, the
Extradition Treaty adopted between Kenya and the U.S.A is the
same treaty that was adopted between the British and the
Americans.
In fact most of the treaties if not all are adopted from the
treaties our various counterparts entered into with the British,
it being stated in the Treaty that:
WHEREAS an agreement has been made between the
Government of Kenya and the Government of the United
States of America that, pending the conclusion of a new
Agreement between the two Governments, the
Extradition Treaty concluded on 22nd May. 1931,
between the United States of America and Great Britain,
should continue to be applied between Kenya and the
In the event that the court orders the discharge of the requested
person, then the requesting State may ask the High court
permission to appeal the decision. This should be made within 14
Days of the Judges decision.
If the High Court grants permission it will go on to consider the
appeal. If the High Court allows the appeal, it will quash the order
discharging the requested person and send the case back to the
District Judge for a fresh decision to be taken.
Secretary of States decision The Secretary of State must order
extradition unless the surrender of a person is prohibited by
certain statutory provisions in the 2003 Act. The requested person
may make any representations as to why they should not be
extradited within 4 weeks of the case being sent to the Secretary
of State. The Secretary of State is not required to consider any
representations received after the expiry of the 4 week period.
Extradition is prohibited by statute if:
The requested person will face the Capital Punishment which is
death . The UK being part of the European Union greatly believes
in the Right to life and has abolished the Death sentence. This
was seen in the case of Soering vs United Kingdom (Soering, a
West German national, murdered the girlfriends parents in
Virginia and fled to U.K., from where his extradition was